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Monday, July 27, 2009

Legal hands on deck for NSW open government "revolution"

Matthew Moore in the Sydney Morning Herald calls on the NSW Premier to take back responsibility for the new Government Information (Public Access) Act from the Attorney General to ensure the backing from the top that will be necessary if culture change on transparency is to go anywhere in the state. And to avoid excessive resort to legalisms, always a danger when attorneys-general and their departments are involved. Hear, hear.

Moore also comments about some aspects of Attorney General Hatzistergos' form, and that of the "invisible Privacy Commissioner", now Acting Information Commissioner, Judge Ken Taylor suggesting reservations about their credentials as access to information czars.
Here are a few other thoughts in addition to this and this last week.

In addition to Moore's example of Mr Hatzistergos putting a Bureau of Crime Statistics report in the "delay release" basket, the Attorney General has been involved in other instances of ordinary performance in this respect. Take the case of the long lost statutory review of privacy legislation, invisible publicly for years until the NSWLRC referred to it in August last year. Then in January this year the mysterious case of the statutory review of the NSW Administrative Decisions Act, with nothing surfacing publicly for years after it should have been tabled in Parliament. Even when eventually published, locating the reports and government responses is tough going (good luck, even with this link after hard digging) and submissions received as part of the reviews are never published.Then there was the tabling in Parliament by the Attorney General of the Privacy NSW Annual Report last year, about six months after it was completed, and a few days before the end of the next reporting year.

The Attorney General was also one of the many NSW ministers who didn't publish media releases on the web until the Premier insisted upon it last year. He doesn't speak publicly often:
one of the two speeches now posted on his website outlines his vigorous opposition to a charter of rights for Australia.

All pretty good background for the minister responsible for the making of a regulation concerning the planned publication scheme for government agencies, required by the new act.

Judge Taylor has been Privacy Commissioner since December 2007, now 20 months. According to the Privacy NSW website, he has issued one media release in that time: four lines in May 2009 about how he will be watching a Federal investigation of a possible privacy breach closely.

There are no speeches by Judge Taylor on the website, so he too either hasn't made any or they are not of interest to the wider community. In fact there have been no speeches posted on the web by any member of the staff since August 2006, just on three years. The Office hasn't made a submission to NSW or Federal government agencies on any policy or legislative matter with privacy implications since December 2008.There has been nothing added to publications under the heading Special Reports and Research since 2002.

Let's hope the standard performance metric for the Information Commission isn't the one used by the Privacy Commission - complaints dealt with within 12 months.(The latest quarterly stats posted are for 2007-2008, now 12 months old, but the link isn't working)

Judge Taylor renewed a batch of "public interest" directions earlier this year that authorise departures from the law by NSW government agencies. As observed at the time the public interest justifications are mere assertions, with no reasoning provided to support the conclusion that the public interest justified a departure from the law. Here was my take on one of them:

"Some uses of the power are highly questionable. For example this direction- extended now for a ninth year - covers a number of exchanges of personal information between government agencies, including simply where the agencies had an agreement to exchange personal information before privacy legislation commenced in July 2000. Maybe there are public interest arguments to support this, but the Commissioner doesn't provide them. And what agreements exist between government agencies to share information about us that need to continue in place 9 years after a law was passed by Parliament that imposed new standards and requirements regarding the handling of personal information? Well the Commissioner doesn't publish a list, and neither did his predecessors who like him were satisfied that the public interest required continuation of old pre-privacy law arrangements."
Neither the Attorney General nor the Privacy Commissioner said a word publicly or took any visible action to address the problem that 10 years after the commencement of the NSW privacy law, because of inaction by the minister and his predecessors, a public servant in a NSW agency passing a person's personal information to any organisation or person in another state or territory does not breach privacy principles, regardless of the circumstances. Not only that, the issue came to light in an ADT decision last December after the Privacy Commissioner intervened to push this point in successfully arguing, despite the agency's prior admission to the complainant, that the agency concerned was not in breach of the law because the relevant action to bring this provision into effect had not been taken,

Mr Hatzistergos pulled the plug on a raft of recommendations from the NSW Law Reform Commission on surveilllance, after the report had sat in the in-tray (his and his predecessor's) for two years saying it was all being adequately handled on a national basis, although I can't recall hearing a word since.

As Matthew Moore points out, the Crown Solicitor is also located in this portfolio, so access to legal advice shouldn't be a problem for the Attorney or the Commissioner. The Crown Solicitor, of course famously declared in 2006 that demands for access to information had created a crisis in government, and railed against media treatment of the subsequently disgraced and disbarred former Justice Marcus Einfeld. Here is a string of posts following that speech. There is no record of the then Attorney General or Mr Hatzistergos taking issue with anything that was said. I can't imagine what the Crown Solicitor makes of the new and generally improved access to information law, although on one point he will be pleased. The law now excludes an override public interest discretion for an agency or review body to release or require the release of information that is claimed exempt on legal privilege grounds, a point Crown sols have been arguing for years, even though the existing law went against them.

Ah you just know that the Attorney General and Acting Information Commissioner are going to be pushing the envelope on this open government business, with strong, visible and vigorous leadership, don't you?

1 comment:

  1. An important piece of commentary you have written Peter. The FOI matter in NSW of course fits on a wider canvas. It is handy to see the problems you have highlighted against the backdrop of how a Napoleonic empire is under construction inside the Attorney General's Department. I have some pieces about that on my own blog. Keep up the good work!